Experimentalist environmental governance in the EU: complex challenges, recursive policy-making, international implications Draft Ingmar von Homeyer, Ecologic, Institute for International and European Environmental Policy, Berlin Paper prepared for the 2008 Berlin Conference on the Human Dimensions of Global Environmental Change; “Long-term policies: governing social- ecological change”, 22-23 February 2008, Berlin, Germany.
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Experimentalist environmental governance in the EU: complex challenges, recursive policy-making, international implications
Draft
Ingmar von Homeyer,
Ecologic, Institute for International
and European Environmental Policy,
Berlin
Paper prepared for the 2008 Berlin Conference on the Human Dimensions of Global Environmental Change; “Long-term policies: governing social-ecological change”, 22-23 February 2008, Berlin, Germany.
2
INTRODUCTION One of the major trends which has characterised EU environmental policy in
recent years is the rise of experimentalist governance. Existing mechanisms of
top-down environmental regulation have been complemented by new structures
relying on framework goals, locally devised measures, information provision and
recursive procedures to encourage policy learning from experience. In contrast to
more traditional mechanisms, these structures operate on the basis of long time
horizons of 20 or more years for implementation. Drawing on two main examples
- the EU Sustainable Development Strategy and the Water Framework Directive -
the paper discusses the factors which led to the emergence of EU experimental
environmental governance, its characteristics and functioning, as well as some
implications for environmental governance at the wider international level.
Since its beginning in the early 1970s EU environmental policy has in
theory been guided by successive Environmental Action Programmes (EAPs)
covering short- to medium-term periods between 5 and 12 years. But the policy
impact of the EAPs tended to be low, not least because they lacked effective
implementation mechanisms beyond occasional stocktaking exercises by the
European Commission’s DG Environment. In practice EU environmental policy
was mostly shaped by more contingent processes, in particular converging
interests of a relatively small number of pioneering Member State governments
and/or their environment ministries, DG Environment, and the European
Parliament Environment Committee. However, at present the governance
arrangements underlying EU environmental policy seem to be in flux. More
specifically, arrangements resembling what Sabel and Zeitlin (2007) have called
“the new architecture of experimentalist governance in the European Union” are
emerging. This experimentalist governance architecture (EGA) promises more
long-term orientations for EU environmental policy as well as better integration
across different environmental effects and of economic and social considerations.
The EGA is characterised by institutions which enable recursive policy-
making and learning from the experience of lower level units. Recursiveness
requires Member State governments and EU bodies to commonly evaluate and
justify their performance at regular intervals. Among other things, this creates
opportunities for continuous adjustment and learning. According to Sabel and
Zeitlin (2007a), the following more specific features characterise the EGA:
- Establishment of framework goals and metrics;
3
- Elaboration of plans by “lower-level” units for achieving them;
- Reporting, monitoring, and peer review of results;
- Recursive revision of goals, metrics, and procedures in light of
implementation experience.
The emergence of EGA-like structures in EU environmental policy is a recent
phenomenon dating back to the second half of the 1990s. The two main case
studies therefore are relatively early examples of the emerging EGA, with the
adoption of the Water Framework Directive (WFD) and the EU Sustainable
Development Strategy (EU-SDS) dating back to the years 2000 and 2001,
respectively. Consequently, the analysis of the EGA characteristics of the WFD
and the EU-SDS can rely on comparatively extensive experience. In addition,
both measures are examples of types of EU environmental measures - strategic
initiatives and comprehensive framework directives - which most other cases of
the EGA in EU environmental policy seem to belong to.
EU environmental measures featuring EGA characteristics have multiplied
in recent years. For example, the Commission adopted seven so-called thematic
strategies on air pollution, waste management, the urban environment,
pesticides, the marine environment, soil protection, and resource management in
2005 and 2006. Along with most of these strategies, the Commission published
proposals for legislation, in particular framework legislation, such as the Marine
Strategy Directive or the Waste Directive. Table 1 provides an overview together
with a preliminary assessment of their EGA characteristics which is based on a
textual analysis of the strategies and, if applicable, accompanying legislative
proposals. The analysis suggests that EGA features are common among the
thematic strategies/associated legislation. Most characteristics are either fully or,
in a smaller number of cases, partly present. However, there is significant
variation among the various strategies. In particular in the cases of the air
pollution and the urban strategies two of the five EGA characteristics are only
“somewhat” present. The actual potential of the strategies/associated legislation
to function according to the requirements of the EGA is likely to vary even more
than Table 1 suggests. Additional factors not represented in the Table, such as
pronounced differences in the substantive scope of the thematic strategies, the
existence of pre-existing EU legislation in a given area, and the availability of
established support mechanisms, such as advisory and expert committees, can
be expected to affect the functioning of the strategies.
4
Table 1: Overview of institutional EGA features of the thematic strategies
Air Marine Pesti -cides
Res-ources
Soil Urban Waste
Legislation
Yes Yes Yes No Yes No Yes
Framework goals and metrics
(+) + (+) + + + +
Reporting obligations, monitoring
(+) (+) + (-) (+) (-) (+)
Peer review
(-) (-) + (+) (+) + +
Periodical review
(+) (+) + + + (-) (+)
“Lower level” plans
(-) + + + + (+) +
+ fully present; (+) partly present; (-) somewhat p resent; - not present
Given that the design of some strategies corresponds more to the EGA than that
of others and the variation in scope and contextual conditions, some
strategies/associated legislation may eventually turn out not to conform to the
EGA. Nevertheless, the adoption of the strategies/associated legislation and their
characteristics clearly attest to the rise of EGA-type measures in EU
environmental policy. In addition to the thematic strategies, there are several
other EU environmental measures which resemble the EGA, such as the
Integrated Product Policy (IPP) or aspects of the Environmental Technology
Action Plan (ETAP).
This paper proceeds as follows: the first section presents a number of
general factors which tend to support the emergence of the EGA in EU
environmental policy. This is followed by sections discussing the EU-SDS and the
WFD, respectively. Each of these sections starts with an introduction presenting
the specific factors which affected the adoption of the EU-SDS/WFD. The
analysis then proceeds to establish the degree of correspondence between the
institutional features of the EU-SDS/WFD and those typically associated with the
EGA. In a second step, the analysis focuses on the experience with the EU-
SDS/WFD so far, focussing on two key EGA mechanisms: recursiveness and
learning. Using the WFD and the related Marine Thematic as examples, the
paper then looks at some of the implications of the rise of the EGA for
environmental governance at the wider international level. The conclusion
summarises the findings and discusses links between the EU-SDS/WFD and the
emergence of the EGA in EU environmental policy more generally.
5
FACTORS AFFECTING THE EMERGENCE OF THE EGA The rise of the EGA in EU environmental policy benefited from several similar
and inter-related general conditions which emerged in the 1990s: the refocusing
of environmental policy on persistent environmental problems; the rise of the
sustainable development paradigm; efforts to integrate environmental concerns
into sectoral policies; challenges to the legitimacy of EU environmental policy,
and the adoption of new policy instruments. While the emergence of the EGA in
EU environmental policy benefited from these general trends, the adoption of the
EU-SDS and the WFD was also affected by more specific conditions which will
be discussed further below.
Persistent environmental problems
To some extent, the rise of the EGA is a response to the success of traditional
EU environmental policy which has addressed the most visible and pressing
environmental problems, such as high levels of air and water pollution. This was
achieved mainly by making the application of “end-of-pipe” clean-up technology -
for example filters and waste water treatment - mandatory, while the polluting
activities as such could continue without major further adjustments. However, as
many of the most pressing problems had been addressed in this way by the late
1980s, attention shifted towards what has been called “persistent environmental
problems”, such as climate change and the loss of biodiversity. These problems
are characterised by
- a relatively close causal link between the problem and the operating logic of
the economic sectors causing the problem. Consequently, the effectiveness
of technical fixes is limited and problem solutions require changes in the
behaviour of sectoral actors;
- high complexity: frequently, the sources of persistent problems are diffuse
and involve a large number of actors, including important indirect contributors.
In addition, cause and effect tend to be significantly delayed;
- low “visibility”: due to the “creeping” character of many persistent problems,
measures must be taken well in advance of the manifestation of serious
effects. However, this means that such measures must deal with uncertainty
and react to models of the future and scenarios rather than direct threats. The
resulting low problem visibility tends to reduce political pressure for action.
6
- global dimension: persistent environmental problems often have an important
global dimension in the sense that, ultimately, they can only be addressed
effectively by internationally co-ordinated measures. This tends to create
political barriers to change as issues relating to social justice (for example,
differentiated contributions by developed and developing countries), national
sovereignty, and weak international enforcement mechanisms need to be
taken into account (cf. Jänicke/Jörgens 2006: 169-171).
Relying on recursiveness and learning the EGA is, arguably, more suitable to
address persistent environmental problems than the more traditional governance
arrangements underlying EU environmental policy. In particular, learning offers
the possibility of intervention into the functioning of economic sectors causing
persistent environmental problems while minimising negative effects on the
sectors’ effectiveness and efficiency. Similarly, learning-based governance may
be particularly suitable to accommodate fundamentally different national
conditions without undermining national sovereignty. Learning is also less
dependent on problem “visibility” than governance arrangements relying more
strongly on politicisation of issues. Recursiveness allows for long-term, flexible
responses which can accommodate uncertainty and the “creeping”, casually
complex character of persistent environmental problems.
Beyond this apparent general “fit” between the EGA and the need to
address persistent environmental problems, the increasing focus on these
problems also created opportunities for the rise of substantive environmental
governance innovations, associated with sustainable development and the
integration of environmental concerns into sector policies, and for the application
of “new” policy instruments, such as market-based approaches, procedural
approaches, and information-based instruments.
Rise of the sustainable development paradigm
The adoption of Agenda 21 at the 1992 Rio Summit was crucial to the rise of the
sustainable development (SD) paradigm which has subsequently been embraced
by a large number of countries and organisations. In particular, many countries
adopted national sustainable development strategies (NSDSs) following the
follow-up Rio+5 Summit in 1997 which had set a 2002 target date for doing so.
The EGA benefited from the rise of SD because SD is associated with
governance functions - recursiveness and learning - which are very similar to
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those underlying the EGA. This becomes clear, for example, if one looks at the
guidelines for designing SD strategies. According to the OECD Resource Book
for SD strategies, being “strategic is about developing an underlying vision
through a consensual, effective and iterative process; and going on to set
objectives, identify the means of achieving them, and then monitor that
achievement as a guide to the next round of this learning process” (Dalal-
Clayton/Bass 2002: 29). SD strategies therefore “move […] towards operating an
adaptive system that can continuously improve”. Similarly, the European
Sustainable Development Network (ESDN) concludes that “overall, the guidelines
for SD strategies put a strong emphasis on procedural and institutional aspects of
an iterative governance process [...]” (ESDN, http://www.sd-
network.eu/?k=basics%20of%20SD%20strategies).
Efforts to integrate environmental concerns into se ctor policies
In legal terms the rise of SD in the EU was reflected most prominently in the
inclusion in the 1997 Amsterdam Treaty of today’s Article 6 TEU, calling for the
integration of environmental concerns into the definition and implementation of
Community sectoral policies (Although SD would, at least in theory, call for more
comprehensive, mutual integration of environmental, economic and social
concerns than Article 6 does).
The so-called Cardiff Process of environmental policy integration was the
most direct consequence of the adoption of Article 6. In December 1997 the
Luxembourg European Council asked the Commission to present a strategy to
implement Article 6, “in particular with a view to promoting sustainable
Development”. The June 1998 European Council in Cardiff called on three
sectoral Council formations - Agriculture, Energy, and Transport - to pioneer the
development of environmental integration strategies. Subsequently, this list of
Council formations was extended to include, among others, the General Affairs,
Internal Market, Industry, and the Economic and Financial Affairs Councils.
According to the December 1999 Helsinki European Council, “[r]egular
evaluation, follow-up and monitoring must be undertaken so that the strategies
can be adjusted and deepened” to facilitate the integration process. The
Commission and the Council are expected to “develop adequate instruments and
applicable data for these purposes” (Presidency Conclusions, Helsinki European
Council, 10-11 December 1999, para. 47).
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At least in theory, the Cardiff process shares important functions and
institutional characteristics with the EGA. This applies to recursiveness and
features such as the use of targets, indicators and regular monitoring and
evaluation. But the significance of learning is less clear and, more importantly,
the range of actors included in the Cardiff process was much too narrow because
it was limited to the EU level and, further, to the Council. In practice the Cardiff
process came to a gradual standstill after the initial drafting of environmental
integration strategies by the various Council formations. Despite repeated calls
by the European Council for follow-up and the “Commission’s intention to carry
out an annual stocktaking of the Cardiff process of environmental integration”
(Presidency Conclusions, Brussels European Council, 20-21 March 2003, para.
58), there was little systematic follow-up by the Council formations concerned
and the Commission only produced a single, belated stocktaking report in June
2004. Consequently, recursiveness and learning did not materialise beyond initial
steps.
Legitimacy challenges and new policy instruments
In the 1990s the legitimacy of EU environmental policy and governance came
under increasing political pressure. The challenges were based on concerns
relating to economic issues, such as costs, competitiveness and employment
effects, but also to subsidiarity and democracy. For example, traditional EU
environmental policy instruments using emission limits and “end-of-pipe” clean-up
technology to reduce pollution were deemed to be inefficient, too expensive, and
ill-adapted to local conditions, in particular if they were to be applied in the future
to combat persistent environmental problems. In particular the British and
German governments called for more flexibility and subsidiarity. At the same
time, the traditional “permissive consensus” among the general public in favour of
the EU began to erode and the Union’s democratic credentials were increasingly
questioned. This put further pressure on “traditional” environmental governance.
Against this background, “new instruments” were expected to increase
efficiency, flexibility, and legitimacy. Economic instruments, most prominently the
CO2 emission trading scheme, but also information-based measures, such as
eco-labels and eco-audits, were adopted to enhance efficiency. To increase
flexibility and subsidiarity, target-oriented measures were introduced, in particular
framework directives allowing lower level units significant discretion. Procedural
legislation - for example, to improve public access to environmental information
9
and consultation of civil society and stakeholders - was expected to increase
effectiveness and democratic legitimacy.
In general, the use of these new instruments seems to provide a
beneficial context for the EGA. For example, procedural legislation requiring
public access to environmental information, impact assessment, and public
participation creates opportunities for the diffusion of knowledge, learning, and
peer-group based accountability. Target-based framework directives allow for
experimentation with different approaches at the national or sub-national level
and the diffusion of good practice among the lower level units. Similarly,
economic and information based instruments allow for variation and testing of
different approaches. In fact, the growing diversity of policy instruments and of
the respective practices itself forms a pool of options from which lower level units
may draw inspiration and information.
In sum, the evolution of EU environmental governance in the 1990s
created a fertile ground for the EGA. EGA-type governance arrangements
characterised by recursiveness and learning appear to be more suitable to
address persistent environmental problems and to integrate environmental
concerns into sectoral policies than traditional EU environmental governance.
Governance arrangements associated with the SD paradigm are similar to the
EGA, in particular in that they, too, rely on recursiveness and learning. Finally,
the rise of new environmental policy instruments at the EU-level tends to support
the emergence and functioning of the EGA. These instruments are often highly
flexible, tend to broaden the number of actors involved in policy-making and
create opportunities for learning and peer-group based accountability.
THE EU SUSTAINABLE DEVELOPMENT STRATEGY1 The EU-SDS provides an initially unsuccessful, but evolving example of EGA-
type mechanisms in EU environmental governance, illustrating the need for
involvement of national-level actors and appropriate organisational structures.
The EU-SDS was first adopted in 2001 and was then significantly revised in
2006. As argued below, the factors supporting the emergence of the EGA in EU
environmental policy in general - the refocusing on persistent environmental
10
problems and the rise of SD, environmental policy integration, legitimacy
concerns and new policy instruments - contributed significantly to the adoption
and revision of the EU-SDS.
The substantive focus of the EU-SDS was clearly shaped by the growing
concern for persistent environmental problems as all of the main environmental
priorities of the strategies concern these problems. These priorities are climate
change, natural resource management, threats to public health, and sustainable
transport. The 2006 revised EU-SDS adds sustainable production and
consumption to these priorities.
The rise of SD at the global level also had a profound impact on the
adoption of the EU-SDS. As mentioned above, the 1997 Rio+10 Summit had
called for the adoption of national SD strategies in time for the subsequent follow-
up meeting in Johannesburg in 2002. Against this background, the December
1999 Helsinki European Council invited the Commission “to prepare a proposal
for a long-term strategy dovetailing policies for economically, socially and
ecologically sustainable development to be presented to the European Council in
June 2001” (Presidency Conclusions, Helsinki European Council, 10-11
December 1999, para. 50). However, Member State positions diverged and the
2001 Gothenburg European Council merely “welcomed” the Commission
proposal for the EU-SDS, adopting a broadly similar, but much less detailed text
as part of its summit conclusions. In practice the original Commission proposal
nonetheless retained some relevance, reflecting its higher specificity, but also
because the European Council invited the Council “to examine, for the purposes
of implementing the strategy, the proposals in the Commission communication, in
particular its proposals for headline objectives and measures” (Presidency
Conclusions, Gothenburg European Council, 15-16 June 2001, para 25).
Because the Commission proposal and the Council conclusions focussed
primarily on the domestic implications of sustainable development for the EU,
another document on the “external dimension” was adopted in 2002.
Environmental policy integration also influenced the EU-SDS. In
particular, the original 2001 EU-SDS contains a section on “Integrating
environment into Community policies”, inviting “the Council to finalise and further
1 The discussion focuses on the environmental dimension of the SDS. Although the social dimension has been strengthened in the renewed SDS, the environmental dimension clearly remains dominant.
11
develop sector strategies for integrating environment into all relevant Community
policy areas” (Presidency Conclusions, Gothenburg European Council, 15-16
June 2001, para 32) – a reference to the Cardiff process mentioned above.
Sector specific references to environmental policy integration include the
Common Agricultural and Fisheries Policies (Presidency Conclusions,
Gothenburg European Council, 15-16 June 2001, para. 31). The renewed EU-
SDS does not explicitly refer to environmental policy integration, but mentions
wider integrative concepts, in particular the integration of economic, social and
environmental considerations (“policy integration”, Council of the European Union
2006, para. 6) which is one of the guiding principles of the renewed EU-SDS. It
also calls for “sustainable development […] to be integrated into policy-making at
all levels” (Council of the European Union 2006, para. 10). However, concerning
substantive issues, the renewed EU-SDS often implies environmental policy
integration. The two priorities “climate change and clean energy” and
“Conservation and management of natural resources” [emphasis added] provide
the clearest examples implying integration of environmental concerns into energy
policy and policies affecting the conservation of natural resources. In addition to
suggestive titles, the renewed EU-SDS also explicitly states that energy policy
should be consistent with the objective of environmental sustainability [emphasis
added]. Similarly, in the section on natural resources the renewed EU-SDS, too,
calls for “greening” the Common Agricultural and Fisheries Policies.
Legitimacy concerns and the discussion regarding new instruments only
had a moderate impact on the original EU-SDS. Under the heading “A new
approach to policy making” the EU-SDS addresses legitimacy concerns inviting
Member States to consult widely and establish appropriate processes
(Presidency Conclusions, Gothenburg European Council, 15-16 June 2001, para.
24). Regarding new policy instruments there are two main proposals: Economic
instruments are to ensure that prices better reflect true costs to society
(Presidency Conclusions, Gothenburg European Council, 15-16 June 2001, para.
22) and all major legislative Commission proposals were to be subjected to a
Framework goals and metrics : the 2001 EU-SDS identifies climate change,
sustainable transport etc. as key environmental priorities. However, it does not
contain sufficiently specified framework goals and metrics. In addition to
excessively general goals, such as “strong economic performance must go hand
in hand with sustainable use of natural resources […]” (Presidency Conclusions,
Gothenburg European Council, 15-16 June 2001, para. 31), the EU-SDS merely
repeats several more specific commitments which had already been adopted in
different contexts. Examples include the indicative targets of the Renewable
Energy Directive and the aim in the EU 6th Environmental Action Programme to
halt the decline of biodiversity by 2010. While the original Commission proposal
13
contains somewhat more specific and original framework goals - such as “[b]y
2020, ensure that chemicals [...] do not pose significant threats to human health
and the environment“ (European Commission 2001: 11) - the 2001 EU-SDS
merely invites the Council to “examine” these “headline objectives” (Presidency
Conclusions, Gothenburg European Council, 15-16 June 2001, para. 25).
In contrast to the original EU-SDS, the renewed EU-SDS contains more
specific objectives which may work better as framework goals and metrics.
However, as with the 2001 strategy, these objectives are not original, but reflect
previous EU commitments. The renewed EU-SDS distinguishes between “overall
objectives” and more specific “operational objectives and targets”. Together,
these may often be regarded as framework goals and metrics. For example, the
overall objective for the priority area “climate change and clean energy” is to “limit
climate change and its costs and negative effects to society and the environment“
(Council of the European Union 2006, para. 13). This is combined with an
extended set of more specific commitments including targets and timeframes
which had previously been adopted in different contexts, including those
mentioned in the 2001 EU-SDS.
“Lower level” plans : like framework goals and metrics, plans elaborated by
“lower level” units hardly feature in the original EU-SDS which merely “invites”
Member States to adopt national SD-strategies (Presidency Conclusions,
Gothenburg European Council, 15-16 June 2001, para. 23). At the time many
countries had in fact already produced national SD-strategies (NSDSs) or were in
the process of doing so in preparation of the upcoming 2002 Johannesburg
World Summit on Sustainable Development. Against this background, it seems to
be particularly problematic that the original EU-SDS lacks any provisions dealing
with links between the EU- and the emerging national SD-strategies.
Interestingly, the renewed EU-SDS conforms much better to the EGA in these
respects than the original EU-SDS. According to the renewed strategy all
Member States are expected to have adopted NSDSs by June 2007. More
importantly, the EU-SDS is used as a basis for EU-level review of NSDSs:
„Future reviews of NSDSs should be undertaken in the light of the revised EU-
SDS [...] bearing in mind specific circumstances in the Members States“ (Council
of the European Union 2006, para. 40).
Reporting, monitoring, and peer review of results: in line with the designation
of the 2001 original EU-SDS as the environmental pillar of the Lisbon strategy,
14
the Commission’s annual synthesis report to the Spring European Council is
identified as the appropriate reporting tool for the EU-SDS. The Spring (“Lisbon”)
European Council reviews the EU-SDS on the basis of this report. In addition, the
Council is expected to identify suitable “headline indicators” to monitor and
evaluate the performance of the EU-SDS (Presidency Conclusions, Gothenburg
European Council, 15-16 June 2001, para. 25). The EU-SDS itself is subject to a
more fundamental review at the beginning of each new Commission’s term.
While the EU-SDS gives responsibility for co-ordinating “horizontal preparation”
(Presidency Conclusions, Gothenburg European Council, 15-16 June 200, para.
24) to the General Affairs Council, it does not identify a specialised or lower-level
body for dealing with the EU-SDS on a more day-to-day basis. Given the
absence of a role for such a body, it is not surprising that peer review is not
foreseen under the original EU-SDS.
The renewed EU-SDS contains more elaborate reporting and monitoring
provisions than the 2001 strategy - not least because it creates independent
reporting and monitoring procedures which are no longer linked to the structures
serving the Lisbon strategy. According to the renewed EU-SDS, the Commission
submits a progress report covering implementation of the strategy in the EU and
the Member States to the December European Council every two years (Council
of the European Union 2006, para. 33). To facilitate national level input, Member
States are expected to appoint representatives acting as EU-SDS focal points
and providing „the necessary input [for the Commission’s report] on progress at
national level in accordance with National Sustainable Development Strategies“
(Council of the European Union 2006, para. 37). Two sets of indicators are
envisaged to monitor EU-level performance of the EU-SDS. For preparing its
biannual progress report, the Commission will “draw on a comprehensive set of
sustainable development indicators (SDIs)”, taking into account the EUROSTAT
SD-Monitoring Report and other relevant factors (Council of the European Union
2006, para. 33). A second, more limited set of indicators will also be used for
monitoring the EU-SDS at the EU-level “and for communication purposes”. These
indicators resemble the “political” headline indicators used for monitoring of the
original EU-SDS; they are to be endorsed and regularly reviewed by the Council
(Council of the European Union 2006, para. 36). In addition to regular Council
review of the “political” indicators, the Member States and the Commission are to
continue to develop, and to biannually review, indicators in the EUROSTAT
working group on SDIs - which produces the SD Monitoring Report - to “increase
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their quality and comparability as well as their relevance to the renewed EU-SDS”
(Council of the European Union 2006, para. 35). The renewed EU-SDS is itself to
be reviewed in 2011 at the latest.
In contrast to the original EU-SDS, which lacked provisions for peer
review, the renewed EU-SDS envisages a voluntary, phased peer review process
in which different groups of Member States engage in annual peer reviews of
NSDSs or specific themes featuring in these strategies (Council of the European
Union 2006, para. 41). The Commission is to use the results of the peer reviews
as input into its biannual progress reports (Council of the European Union 2006,
para. 37). In addition, the renewed EU-SDS suggests that the European
Sustainable Development Network (ESDN) could help to identify priority areas
and examples of good practice as well as facilitate exchange of experience
(Council of the European Union 2006, para. 42). ESDN is an informal network of
European national officials dealing with NSDSs.
In sum, the analysis of the institutional features of the EU-SDS suggests
that, despite ambitions such as building “an effective review” (Council of the
European Union 2006, para. 25), the 2001 EU-SDS failed to establish strong
institutions to perform this and other functions associated with the EGA. In
particular, framework goals and metrics were insufficient; provisions on planning
by “lower level” units were very weak and did not establish any procedural or
substantive links with the EU-SDS; reporting and monitoring requirements lacked
institutional anchoring in sufficiently specialized bodies and there were no
provisions for peer review. The analysis therefore suggests that, while the
aspirations and broad contours of the 2001 EU-SDS are strongly reminiscent of
the EGA, the concrete institutional arrangements foreseen appear to be too weak
to effectively perform the required functions. By contrast, the institutional
characteristics of the 2006 revised EU-SDS correspond more closely to the EGA
and, on the whole, can be expected to be more effective than those of the
original EU-SDS. While framework goals and metrics remain somewhat vague
and lack originality, they tend to be more concrete than those of the original EU-
SDS. Provisions on planning by “lower level” units were strengthened and a link
with the EU-level has been established. Reporting and monitoring are
institutionally anchored in various specialized bodies, such as the national focal
points and the working group on SDIs. Peer review has also become part of the
EU-SDS.
16
The EU-SDS in practice
How do the institutional characteristics of the EU-SDS translate into practice?
More specifically, have they allowed the EU-SDS to perform key EGA functions,
in particular recursiveness and learning? Starting with recursiveness, the
following discussion not only looks at the implementation of the original and the
renewed EU-SDS, but also discusses the process of the revision of the strategy
between 2004 and 2006.
Recursiveness : recursiveness of the original EU-SDS tended to be very weak in
substantive terms. The annual review by the Spring European Council remained
a largely pro-forma, ineffective exercise. Similarly, the Commission’s Spring
progress reports focused mainly on economic issues and employment, paying
much less attention to the environmental priorities highlighted by the EU-SDS
(Homeyer 2007, Pallemaerts et al. 2007: 32-33). Only 3 out of a total of 14
„headline indicators” used in the reports focused on environmental issues. The
SDS’s four key environmental priorities were only partly covered. The fact that
the exclusively economic and social aims of the Lisbon strategy were never
adjusted to take account of the newly added environmental dimension is a
particularly striking example of failed recursiveness. Against this background, DG
Environment stated in 2005 that "to many actors the environment still appeared
as an add-on to the rest of the [Commission’s Spring] Report in 2002 and 2003"
(European Commission 2005).
Recursiveness of the original EU-SDS was somewhat stronger in
procedural than in substantive terms. In 2003 the Spring European Council
attempted to strengthen the role of the EU-SDS in the context of the Lisbon
strategy, noting the Commission’s “intention to carry out an annual stocktaking of
the Cardiff process of environmental integration and a regular environment policy
review [which are] to be taken into account in [...] Spring reports, starting in 2004”
(Presidency Conclusions, Brussels European Council, 20-21 March 2003, para.
58). This decision reflected the lack of integration of the EU-SDS into the
previous two review cycles. As illustrated below, the 2004-2006 fundamental
review of the EU-SDS itself is another example of recursiveness, although it was
significantly delayed because the new Barroso Commission which took office in
2004 decided the review the Lisbon strategy first.
Significant instances of substantive recursiveness can be identified in the
context of the 2004-2006 review of the EU-SDS. Perhaps most importantly in
17
substantive terms, the relationship between the EU-SDS and the Lisbon strategy
was redefined. Whereas the 2001 Gothenburg European Council saw the original
EU-SDS as providing an environmental dimension to the Lisbon strategy, the
renewed EU-SDS “forms the overall framework within which the Lisbon strategy,
with its renewed focus on growth and jobs, provides the motor of a more dynamic
economy” (Council of the European Union 2006, para. 8). This redefinition of the
relationship between the two strategies reflected the experience of the failed
integration of the EU-SDS into the Lisbon strategy. Similarly, the somewhat
improved specification of framework goals and metrics in the renewed EU-SDS
appears to have been motivated at least partly by the negative experience with
the 2001 EU-SDS.
The review of the EU-SDS also featured significant recursiveness in
procedural terms. One of the most important examples again concerns the
relationship with the Lisbon strategy. The establishment of a new, independent
review cycle for the EU-SDS seems to have resulted from the experience with the
previous, incomplete and superficial EU-SDS reviews in the context of the Lisbon
strategy. It seems less clear to what extent the second set of major procedural
innovations - the obligation to name national focal points and submit NSDSs for
review in light of the EU-SDS - can be attributed to recursiveness. The revision of
the Lisbon strategy, which immediately preceded the revision of the EU-SDS, led
to similar innovations. It therefore seems likely that the Lisbon strategy
innovations served at least to some extent as a model for reforming the EU-SDS.
As there is little experience so far with the renewed EU-SDS, its
performance cannot be assessed yet. However, the newly independent EU-SDS
reporting and review process and the creation of expert bodies dealing with the
EU-SDS - in particular the national SDS coordinators group chaired by the
Commission’s Deputy Secretary General, but also the informal ESDN network -
seem to provide significantly improved opportunities for recursive governance.
Learning : In substantive terms, the original EU-SDS and the 2004-2006 revision
resulted in very limited learning. Perhaps most importantly, the original EU-SDS
contributed significantly to indicator development. Shortly after its adoption,
EUROSTAT established the SDI Task Force, bringing together national and
Commission officials and other experts. An initial, comprehensive set of “12
headline, 45 core policy and 98 analytical indicators” was presented in 2005
(EUROSTAT 2005; European Commission 2005a). The 2004-2006 revision of
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the EU-SDS resulted in a somewhat better specification of framework goals and
metrics which can be interpreted as an instance of moderate learning. The same
applies to the new designation of the EU-SDS as a “framework” for the Lisbon
strategy. However, it remains to be seen whether, and how, these changes will
influence the implementation of the renewed EU-SDS.
Concerning procedures, it is difficult to identify major instances of learning
in the framework of the original EU-SDS despite the significant recursiveness
described above. The annual Environmental Policy Review (EPR) and Cardiff
(environmental integration) stocktaking reports which were mentioned above
were introduced to improve SDS-related reporting. However, these procedural
innovations soon turned out to be ineffective. In the absence of further guidelines,
the format of the EPR remained unclear. This resulted in a lack of specific focus
and purpose and a seriously belated first EPR. Subsequent reports encountered
similar problems. Due to a lack of political support from Member States and the
Commission, the 2004 Cardiff stocktaking report (European Commission 2004)
was a one-off exercise. The two environmental reporting innovations failed to
improve the coverage of the EU-SDS in the Commission’s spring reports and the
review by the European Council. On the contrary, the 2005 and 2006 Spring
Reports no longer contained separate chapters on environmental issues. The
environment was only mentioned in a number of references which were widely
scattered throughout the reports (cf. Pallemaerts et al 2007: 33).
In contrast to the original EU-SDS, learning in the framework of the 2004-
2006 revision of the EU-SDS resulted in several procedural changes, in particular
the obligation for Member States to produce NSDSs and appoint national focal
points, the introduction of an independent reporting and review process for the
renewed EU-SDS, and better opportunities for peer review, sharing of experience
and the identification of good practices. Although it is too early to tell whether,
and to what extent, these measures will succeed, they appear to be more
suitable to increasing the political effectiveness of the EU-SDS than the
procedural innovations which had been introduced under the original EU-SDS.
This is partly because the revision of the EU-SDS could draw on broader and
longer experience than innovations introduced under the original EU-SDS.
Experience gained with the implementation and reform of the Lisbon strategy was
relevant in this respect. Such experience was readily available in the Commission
where the Secretariat General was in charge of the reviews of the Lisbon strategy
19
and of the EU-SDS. It is therefore not surprising that some of the SDS’s main
procedural changes are similar to those of the Lisbon strategy which had been
decided upon only a few months earlier. Like the Lisbon strategy, the original EU-
SDS had failed to generate sufficient commitment and innovation at national
level. The inclusion of NSDSs and national focal points in the renewed EU-SDS
is expected to increase “ownership” and stimulate mutual learning2; at the same
time it resembles the changes made to the Lisbon strategy. The decision to
decouple the EU-SDS reporting and review process from the Lisbon strategy was
taken not only against the background of the initial failure to effectively integrate
the EU-SDS into the Lisbon strategy, but also of the subsequent failures of the
EPR and Cardiff stocktaking to do so.
A broad and long consultation process involving a range of state and non-
state actors constitutes another factor giving reason to expect learning to have
played a significant role in the 2004-2006 revision of the EU-SDS. Starting in
early 2004 with an elaborate internet consultation launched by the Commission,
the review of the EU-SDS was accompanied by many hearings, workshops,
conferences etc. The Commission published two communications and the
European Council adopted a set of SD guiding principles. Drawing on additional
hearings and workshops involving, among other things, several environmental
NGOs and ten Council formations, the Austrian EU Presidency provided political
leadership at the final stages of the revision process (cf. Kopp 2006). The
revision of the EU-SDS therefore benefited from the knowledge gathered in the
run of this consultation process, creating additional opportunities for learning.
In spite of all of this, the political tensions characterising the relationship
between the EU-SDS and the Lisbon strategy also prevented learning in some
cases. The failure to adopt adequate procedures regulating this relationship
illustrates this. More specifically, the newly introduced designation of the EU-SDS
as a „framework“ for the Lisbon strategy has not been translated into
corresponding co-ordination procedures. In fact, there is only a relatively vague
provision in the renewed EU-SDS which does not correspond to the SDS’s
framework character because it instructs the Council to take “account of priorities
under the Lisbon strategy for growth and jobs” when reviewing the SDS (Council
of the European Union 2006, para. 38), rather than the other way round.
2 Interview with Alexander Italianer, European Commission, Deputy Secretary General and chair of the SDS Coordinators Group, in Berger and Steurer (2007).
20
While it is too early to assess the actual implementation of the renewed
EU-SDS, a number of implementing measures which point to improved
conditions for learning have already been taken. For example, the activities of the
national SDS coordinators group have been extended beyond reporting on
NSDSs to include exchange of experience and best practice, discussion of
progress made on peer reviews, and provision of input and suggestions on new
SD policy initiatives (cf. Berger/Steurer 2007). The Commission has also made
co-financing available to support peer reviews of NSDSs and selected themes.
By mid-2007 the French and Dutch NSDSs had already been reviewed. A total of
eight Member States was involved in these review processes. Several
participants and Commission officials have given positive assessments of the
results of the reviews (Berger et al. 2007: 20-24). In addition, the European
Economic and Social Committee (EESC) has established an SD Observatory.
According to the renewed EU-SDS the EESC “should play an active role in
creating ownership [...] and is invited to prepare input to the biennial progress
report of the Commission including a collection of best practices of its members”
(Council of the European Union 2006, para. 39).
In sum, this analysis of the institutional characteristics of the EU-SDS and
its functioning with respect to recursiveness and learning suggests that despite
featuring several institutional arrangements which correspond to the EGA, the
original EU-SDS was insufficiently recursive and generated only very few
instances of learning in practice. The lack of recursiveness can largely be
attributed to the fact that the reporting cycle of the original EU-SDS was part of
the Lisbon strategy, while specific bodies which could have generated learning
and pushed for better integration of the EU-SDS into the Lisbon strategy were not
created. Therefore the original EU-SDS remained a largely pro-forma “add-on” to
the Lisbon strategy. The fact that the original EU-SDS was not linked to national
SD-strategies reinforced this tendency. The revised EU-SDS partly addresses the
deficits of the original EU-SDS. The EU-SDS is now based on its own,
independent reporting cycle. In addition, NSDSs have been linked to the EU-
SDS, and a specialised body - the group of national SD coordinators – has been
created to increase national input and improve the co-ordination of the EU-SDS
process. Mechanisms and fora specifically promoting learning on the basis of
peer review have also been established. Whether or not these innovations will
lead to a significant improvement of the functioning of the EU-SDS remains to be
seen. In particular, new tensions between the EU-SDS and the Lisbon strategy
21
may emerge in the absence of improved procedures to co-ordinate the two
substantively interdependent strategies. It also remains unclear whether Member
States will be sufficiently committed to the EU-SDS/NSDSs, although the
successful revision of the EU-SDS despite an initial lack of political support by the
Commission suggests that there is a relatively high degree of commitment at
least by some Member States.
THE WATER FRAMEWORK DIRECTIVE The Water Framework Directive (WFD) provides another early example of the
EGA in EU environmental policy. As was the case with the EU-SDS, the WFD
had to be amended - albeit in an informal way – to improve implementation.
However, in contrast to the EU-SDS, the WFD was amended only a few months
after its adoption. As a result of this early amendment, significant progress has
been made in the implementation of the WFD.
Following several years of highly antagonistic negotiations among
Member State governments, the WFD was eventually adopted in 2000. The WFD
itself as well as its implementation differ in two major ways from most earlier
pieces of EU environmental legislation: First, the Directive is very general and
open-ended: “Far from being a single piece of legislation as that term is normally
understood, the WFD is better seen as the initiation of a comprehensive program
designed to guide further action by the EU and the Member States”
(Trubek/Trubek 2006:18). The way in which the WFD defines overall aims
provides a good example of its open-endedness. The WFD states that Member
States must achieve “good water status” by 2020. However, it is left to the
implementation stage to define what good water status means in practice.
Similarly, the concrete requirements of the river basin plans - the overarching
instrument that is to deliver good water status - are also to be developed at the
implementation stage.
The Common Implementation Strategy (CIS) is the second main WFD
feature rendering the Directive different from previous EU environmental
legislation. The CIS was established following the adoption of the WFD which,
however, does not mention the CIS. Involving representatives from DG
Environment and Member States as well as technical experts and stakeholders,
the CIS is an instrument to support implementation of the WFD. More specifically,
the CIS was created to facilitate the elaboration, testing and validation of
22
technical guidance documents and best practices as well as the sharing of
experience and information in order to avoid the duplication of efforts and to limit
the risk of a bad application (CIS 2001: 3-4). Although CIS output, such as the
guidance documents, is legally non-binding, the CIS had a significant influence
on the implementation of the WFD so far.
In many ways the adoption of the WFD reflects the factors which affected
the emergence of the EGA in EU environmental policy more generally. With its
comprehensive focus on river basins rather than specific pollutants or sources of
pollution, one of the main objectives of the Directive is to address persistent
environmental problems caused by excessive water consumption and diffuse
sources of pollution, for example in agriculture. The WFD embodies a shift of EU
water policy towards the sustainability paradigm and supports the integration of
environmental concerns into various sectoral policies. In particular, water is
explicitly treated as an economic as well as an environmental resource. Among
other things, this is reflected in various flexibility clauses - for example, allowing
subsidised water services for low-income households (Page/Kaika 2003: 5) - the
use of economic valuation, and other economic instruments, such as provisions
for cost recovery. Stakeholder participation and decentralised planning at the
level of river basins is, among other things, meant to increase the democratic
credentials of the WFD.
In addition to these general trends, the specific characteristics of the WFD
are also owed to certain institutional and political constraints on the execution of
EU competencies. EU law stipulates that environmental measures “affecting
quantitative management of water resources”, but also town and country planning
as well as land use, must be adopted unanimously by Member State
governments (Article 175 TEU). This contrasts sharply with environmental
legislation in other areas, where the Co-decision Procedure and its less restrictive
requirement of support by a qualified majority of Member States applies. As a
result of the comprehensive approach taken by the WFD, the Directive to some
extent affects areas falling under the more restrictive procedure, in particular
quantitative management of water resources (cf. Page/Kaika 2003: 6). This
posed potentially insurmountable obstacles for the adoption of the WFD primarily
because of the opposition of several southern European Member States, such as
Spain, Italy and Greece, to EU measures that could result in a restriction of water
supplies. For example, responding to the Commission’s WFD proposal, the
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Spanish government raised serious sovereignty concerns arguing that measures
affecting water quantity may have negative economic repercussions (cf.
Page/Kaika 2003: 6).
Against this background of exceptionally high political sensitivity in some
Member States and the potential application of restrictive EU decision-making
procedures, the WFD’s vagueness and open-endedness can partly be interpreted
as a concession to political pressure and an effort to ensure that the WFD would
not fall under the legislative unanimity rule. Shortly before the adoption of the
WFD, the European Court of Justice (ECJ) finally dismissed the Spanish
government’s claim that the WFD should fall under the restrictive Article 175
(Kaika/Page 2003: 11).
Institutional features
As illustrated below, the WFD/CIS is characterised by a number of institutional
features which correspond to EGA functions:
Framework goals and metrics : The WFD/CIS is built around a clear - though
vague - framework goal: the achievement of “good water status” by 2020. Metrics
and benchmarks to assess progress towards the achievement of the Directive’s
aim have been, or are to be, established. They range from quite specific chemical
and ecological criteria to entire reference sites to ensure that “good status”
means the same in all Member States despite different local and regional
conditions. The so-called “intercalibration” exercise is expected to result in the
harmonisation of ecological quality status assessment systems for all surface
waters.
“Lower level” plans : The WFD/CIS resembles the EGA in that it requires “lower
level units” to prepare plans for achieving “good water status”. More specifically,
Member States are obliged to develop comprehensive river basin management
plans. These plans are key to the implementation of the WFD on the ground.
Reporting, monitoring, and peer review of results : The WFD also features
EGA characteristics such as regular reporting, monitoring, and peer review.
Because full implementation of the WFD stretches over almost three decades, it
has been divided into three management cycles with the last extension of
deadlines ending in 2027. While some reporting obligations only require one-off
reporting, many of the crucial aspects of the Directive are subject to reporting
24
every six years. This applies, for example, to submitting updates of the
environmental and economic analysis of river basin districts (Article 5),
programmes of measures (Article 11), and river basin management plans (Article
13). Similarly, the Commission is obliged to report on implementation of the WFD
every six years (Article 18). In addition to the monitoring facilitated by the various
reporting requirements, Member States are expected to develop and implement
comprehensive monitoring of the chemical and ecological status of river basin
districts using common technical specifications to be established by the WFD
regulatory committee (Article 8). Standardised and co-ordinated reporting and
monitoring is also to be supported by the Water Information System Europe
(WISE) which is not formally part of the WFD, but has been developed under the
CIS (CIS 2003a).
The CIS in particular provides the WFD with what comes close to a
system of multi-level peer review. Essentially, the CIS has established a nested
hierarchy of expert fora, ranging from the more political to the more technical.
The water experts draft, review, and adopt guidance documents and other CIS
output drawing on their technical and scientific expertise as well as country
specific knowledge and experience. At the top of the CIS hierarchy is the meeting
of the Water Directors. A Water Director typically heads the water division in a
national environment ministry. Draft documents are prepared by a number of
working groups (WGs) with more specific tasks. For example, the “Ecological
Status” WG has been charged with developing harmonised or comparable criteria
for high and good environmental quality as well as monitoring and assessment
systems (CIS 2006: 16). Steering and preparatory groups as well as drafting
groups and highly specialised expert networks and workshops support the WGs.
In addition there are so-called ad hoc structures, in particular the strategic
steering groups looking specifically at links between the WFD and other policy
sectors and expert fora directly advising the Commission (ibid.: 12-14). Usually, a
clear majority of the participants in these networks are national officials. However,
external scientific experts and stakeholders, such as economic actors and
environmental NGOs are also well represented, in particular in the more
specialised fora.
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The WFD/CIS in practice
The following analysis presents significant instances of recursive policy-making
and learning in the framework of the WFD/CIS:
Recursiveness: The WFD has a comprehensive scope and long timeframe for
implementation but lacks detailed substantive provisions. The resulting
uncertainty and complexity necessitate a recursive governance approach where
existing WFD measures need to be continually adapted in response to the
successive implementation of WFD measures, the accumulation of experience,
and changing circumstances. This means that operational objectives, metrics,
procedures etc. must remain provisional and need to be regularly reviewed and
revised. Two main factors provide a basis for recursive adjustment. First, as
mentioned above, the WFD comprises numerous provisions requiring periodical
monitoring, reporting and review of measures. Second, by incorporating national
and sub-national experts in the review and revision processes, the CIS creates
better opportunities for cross-level, vertical feedback. In this way the CIS
strengthens the link between actual implementation experience at national and
sub-national levels and EU-level monitoring and review processes.
In 2007 the Commission completed the first interim review of
implementation on the basis of national reports mandated by Articles 3 and 5.
Focussing on administrative arrangements for implementing the WFD and on the
analysis of river basins by national authorities, the review illustrates, among other
things, the link between monitoring and review provisions and the CIS. Along with
some progress, for example concerning national administrative arrangements, it
reveals severe shortcomings in the economic and environmental analyses of river
basins submitted by Member States (European Commission 2007: 7-8).3
Addressing these results, the review refers to the CIS, stating that the
Commission would focus its support on improving economic instruments and the
assessment of ecological status (ibid.: 11).
The CIS itself has been revised in 2003, 2005, and 2006. In each case
the Water Directors reviewed the CIS and adopted updates of the CIS work
programme which concerned both substantive and organisational aspects. For
example, in 2003 the CIS was restructured. This resulted in a significant
reduction of the number of working groups and in the adoption of measures to
26
increase the accountability of CIS structures below the level of the Water
Directors (cf. Scott/Holder 2006: 17). Similarly, reflecting the completion of tasks
and shifting priorities, the Working Group on Integrated River Basin Management
was dissolved in 2006, while the ad hoc stakeholder forum on floods was
transformed into a more permanent Working Group (cf. CIS 2006: 8).
CIS substantive output, such as the guidance notes and similar
documents, is also intended to be reviewed and revised, albeit on a more ad hoc
schedule than the CIS work programme (Scott/Holder 2006: 17). Some CIS
documents explicitly mention the preliminary status of CIS output. For example,
the guidance note on the planning process states that it “is a living document
[original emphasis] that will need continuous input and improvements as
application and experience build up in all countries of the European Union and
beyond” (CIS 2003: i).
Learning : The evolution of the CIS so far shows that, first, different types of
learning have characterised different phases and, second that there is a trend
towards more inclusive and mutual types of learning. Initially, the CIS focussed
on the development of non-binding guidance notes designed to support
implementation at national and sub-national levels (European Commission
2007a: 44). Activities at this stage were dominated by several large Member
States, such as Germany, France or the UK, leading key working and drafting
groups. Reflecting the strong influence of these countries, learning resembled an
asymmetrical diffusion process in which most information flowed from these
countries towards the remaining, less influential Member States. The fact that,
when it comes to implementation of the WFD, the smaller, and in particular the
future Central and Eastern European Member States, tended to draw more
heavily on the guidance notes than the large, “old” Members further increased the
prevailing asymmetry (Interviews VROM, May 26, 2005; European Commission,
June 23, 2005). On the whole, the uptake of the guidance notes at the national
and sub-national levels appears to have varied strongly not only among Member
States but also among guidance notes. For example, the 2006 CIS work
programme finds that “there was only limited or no use made of the CIS
Guidance Documents” (CIS 2006: 2), whereas the Commission finds that the
guidance documents on the identification of heavily modified water-bodies were
3 In addition the Commission identified numerous serious transposition failures (ibid.).
27
“widely used” (European Commission 2007a: 26). The Commission itself drew
heavily on the reporting guidance notes when evaluating Member States’
implementation reports (ibid.: 15, 23).
When the pilot river basin projects were launched, learning took on a
more experimental form in that the guidance notes were to be tested in these
projects. An early result which was based on the first experiences with the pilot
river basins was a CIS document (CIS 2004) on the principles of the WFD
environmental analysis (Art. 5) (cf. European Commission 2007: 24). However,
the idea of the pilot river basins serving as laboratories for testing and refining
CIS recommendations was only partly realized because many early results
tended to be disconnected and too specific to local settings (Interview, 13 June
2005). Nonetheless, the pilot river basins are still being perceived as helpful and
continue to be used for testing of, and providing feedback on, a broad range of